A care worker who was fired by The Pines Retirement Home for refusing to take a COVID-19 vaccine is at the centre of a protracted court dispute over the employment rights of charity workers.
Government attorneys together with the Department of Labour and Pensions are challenging an earlier Grand Court ruling that found the worker’s rights were breached when she was barred from challenging her dismissal.
In his initial judgment, Acting Justice Alistair Walters ruled that Shelliann Bush had been denied a fair hearing by government after the DLP said it could not investigate the matters surrounding her termination because she worked for a registered charity.
He further ruled that the Labour Act itself was incompatible with the Constitution because it does not cover employees of charitable organisations.
During the day-long appeal hearing on Wednesday, government’s lawyers attested that Justice Walters was wrong on both those grounds, urging the Court of Appeal to reverse his ruling.
Bush, a former care worker at the Pines Retirement Home, was fired after 10 years on the job because she would not take the COVID-19 vaccine, at the time citing religious reasons for her refusal.
Following her dismissal, she brought her case to the DLP who, in a letter to her attorney, declined to investigate the matter claiming it was outside their jurisdiction because The Pines Retirement Home is a registered charity, and the law does not protect workers of charitable organisations from being unfairly dismissed.
According to the Labour Act, for a person to qualify to bring an unfair dismissal case they must have first pass a probationary period as set by their employer, or where no probationary terms are set out, the law requires the employee to have worked with the employer for three consecutive months.
If an employee meets the above criteria, the law then sets out a slew of reasons that would constitute fair dismissal – none of which are strictly on medical grounds.
However, Section 3 (b) also states that “This Act does not apply to… charitable organisations”.
Michael Smith, of the Attorney General’s Chambers, who led the appeal and dealt with the first ground, told the court that the Labour Act should be read and interpreted at face value, arguing that it clearly addressed the caregiver’s circumstances and gave her no legal right to challenge her dismissal.
“The Act clearly precludes persons employed by charitable organisations from bringing claims of unfair dismissal, as set out in section 3, and should have been read and interpreted in a manner that such a person has a substantive right,” said Smith.
He added, “The courts should not have trespassed into the realm of Parliament, which has in each revision of the [Labour] Act kept this specific wording.”
Bush’s attorney Rupert Wheeler called on the appeals court to uphold the judgment, saying it addressed an implied right which, if struck down, would result in an act of discrimination against his client.
“We say that the law is specifically broad in its definition of a person who is an employee, whereas it is silent in other aspects,” said Wheeler.
According to Wheeler, the basis upon which Walters arrived at his judgment was against the backdrop of Sections 7, 9 and 16 of the Bill of Rights, namely the right to a fair trial, the right to private and family life and the right to non-discrimination.
Wheeler argued that there must be an inherent right to protect people against being unfairly dismissed and that right should not be connected to the company’s registered status.
“If a registered company was to change its designation from a for-profit entity to a charitable entity, that would mean the rights which the employees previously guaranteed would change or even cease to exist, this… should not be the case,” said Wheeler. “One day the person would have a right and the next they would lose it.”
He added, “In the case of the Pines, a government-owned charity, Section 3 doesn’t extinguish the substantive right; it just diverts the claim into the Personnel Regulations.”
Turning his attention to the arguments of discrimination, Wheeler told the court that although Bush had not been tremendously negatively impacted by the termination, she was still discriminated against.
“One doesn’t need to prove there is harm or damage, but simply needs to show they were deprived of one thing and not another,” he said.
Although Justice Walters did rule in Bush’s favour, he ultimately did not find that she was discriminated against.
When responding to Wheeler’s second set of statements, Heather Walker, also of the Attorney General’s Chambers, claimed that Bush had the right to explore whether she was, in fact, protected against being unfairly dismissed – and not a clear right against being unfairly dismissed.
Though at first glance these two things may seem the same, they aren’t.
What Walker was arguing was that Bush’s only right was to challenge the DLP’s decision by way of a judicial review, which is a right granted to her by the Constitution.
“Rather, it is a procedural right to a hearing to determine if there was a substantive right that had been affected,” said Walker.
The appeals court justices reserved their decision, choosing to return their judgment in the coming months.
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